Buckley v. Porter

• Decision Date: 30 March 1931
• Docket Number: 29191
• Citation: 160 Miss. 98,133 So. 215
• Court: Mississippi Supreme Court
• Parties: BUCKLEY v. PORTER

133 So. 215

160 Miss. 98

BUCKLEY v. PORTER

No. 29191

Supreme Court of Mississippi

March 30, 1931

Division A

1. JUSTICES OF THE PEACE. Where householder resides out of district of justice of peace before whom suit is brought both justice and circuit court on appeal are without jurisdiction (Code 1930, section 2072).

Code 1930, section 2072, provides that every freeholder or householder of the county shall be sued in the justice of the peace district in which he resides.

2. JUSTICES OF THE PEACE.

Term "freeholder" within statute governing venue in actions triable before justice of peace refers to property (Code 1930, section 2072).

3. JUSTICES OF THE PEACE. Term "householder" within statute governing venue in actions triable before justice of peace refers to civil status of litigant and not to property (Code 1930, section 2072).

Term "householder," within Code 1930, section 2072 requiring every householder of county to be sued in justice of peace district in which he resides, means a person who has a family, whom he keeps together and provides for, and of which he is the head or master. Persons who dwell together as a family constitute a household.

4. JUSTICES OF THE PEACE.

Term "resides" within statute governing venue in actions triable before justice of peace means where person has settled abode for time (Code 1930, section 2072).

5. JUSTICES OF THE PEACE.

Mother who with child rented land in L. county and made crop thereon held "householder" "residing" in such county within statute governing venue in justice court actions (Code 1930, section 2072).

HON. W L. CRANFORD, Judge.

APPEAL from circuit court of Jasper county, Second district, HON. W. L. CRANFORD, Judge.

Action by D. N. Porter against Mrs. J. W. Buckley. From a judgment of the circuit court for the plaintiff, after appeal from the justice court, defendant appeals. Reversed and cause dismissed.

Reversed and cause dismissed.

T. W. Davis, of Purvis, for appellant.

If a defendant, a resident freeholder or householder of the state of Mississippi, be sued in a transitory action before a justice of the peace without the county of his residence, he may, except when sued where the contract was made, have the case dismissed for such cause.

Williams v. Stewart, 79 Miss. 64, 30 So. 1; Section 2072, Code of 1930; Cain v. Simpson, 53 Miss. 521.

A justice of the peace has no jurisdiction of a cause against a resident of another district where the debt was contracted and the liability incurred and which has a justice of the peace qualified to act, and default judgment in such case is void.

Hilliard v. Chew, 76 Miss. 765, 25 So. 489; Molpas v. Bostic Lumber & Mfg. Co., 111 Miss. 883, 71 So. 16.

Where an action was instituted before a justice of the peace who had no jurisdiction of the case, the writ was properly dismissed by the circuit court.

Richardson v. Davis, 59 Miss. 15.

M. W. Boyd and F. H. Bush, both of Laurel, for appellee.

The appellee has traveled strictly of course, upon the theory that the residence of the appellant was still in the Second district of Jasper county, and in Beat four thereof.

When it cannot be ascertained with certainty in which county a defendant resides, when he is in the act of removing from one county to another, the action may be brought against him in either county.

Brown v. Boulden, 18 Tex. 431.

OPINION

Smith, C. J.

The appellee sued the appellant in the court of a justice of the peace in Jasper county, on a promissory note, executed by the appellant and her husband, now deceased. The summons for the appellant was issued by the justice of the peace, addressed to the sheriff of Lamar county, and was served by him on the appellant in that county. She appeared and filed a motion to dismiss the suit, for the reason that she was a resident and householder of Forrest county. This motion was overruled, and judgment was rendered for the plaintiff, Porter, from which Mrs. Buckley appealed to the circuit court, where she renewed her motion, which was again overruled, and judgment was again rendered for the plaintiff, Porter.

It appears from the evidence in support of this motion that on and prior to the 5th of January, 1929, the appellant was living in Jasper county with her husband and one minor child, on a farm owned by her husband, who died on that date; and that about a month thereafter the appellant leased his farm, and together with her child and household effects moved to Lamar county, where she rented land from her father and made a crop thereon. Whether she and her child lived in the house with her father or by themselves does not appear.

In August, 1929, the appellant went to Hattiesburg, in Forrest county, secured employment there, rented a room for herself and child, and returned to the farm in Lamar...